Supreme Court New South Wales Medium Neutral Citation: Resilium Pty Ltd v Nest Insurance Consult Pty Ltd (No 3) [2024] NSWSC 65 Hearing dates: 02 February 2024 Date of orders: 02 February 2024 Decision date: 02 February 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Common interest privilege not established; Resilium Parties may inspect documents in Packet S-19 Catchwords: EVIDENCE – client legal privilege – waiver – documents produced on subpoena – communications between counterparties to proposed contract – where legal advice shown to proposed counterparty – where no evidence of stage to which negotiations reached at time of disclosure – whether common interest established Cases Cited: Resilium Pty Ltd v Nest Insurance Consult Pty Ltd [2021] NSWSC 974 Category: Procedural rulings Parties: Resilium Pty Ltd (Plaintiff/Second Cross-Defendant/Applicant) Resilium Insurance Broking Pty Ltd (First Cross-Defendant/Applicant) Nest Insurance Consult Pty Ltd (Defendant/Cross-Claimant/Respondent) Representation: Counsel: M R Elliott SC with D K Ratnam (Plaintiff/Cross-Defendants/Applicants) S Philips (Defendant/Cross-Claimant/Respondent) Solicitors: Roberts & Partners Lawyers Pty Ltd (Plaintiff/Cross-Defendants/Applicants) Cite Legal Pty Ltd (Defendant/Cross-Claimant/Respondent) File Number(s): 2020/356006 EX TEMPORE JUDGMENT (REVISED) 1. The background to this matter is set out in my judgment of 5 August 2021. [1] 2. Since then, Mr Nguyen, through his company Postcode Insurance Consult Pty Ltd, has entered into an arrangement with Azure Holdings Pty Ltd trading as Edgar Insurance Brokers which is, for today's purposes, similar to that he formerly had with Resilium Pty Ltd. 3. The matter before me concerns an argument arising from the cross-claim Nest has now brought against the Resilium parties. 4. The Resilium parties have served a subpoena on Azure seeking various documents. Azure has produced documents in respect of which Nest or Postcode claim client legal privilege. Those documents are now in "Packet S-19". 5. A dispute has arisen as to whether Nest or Postcode has waived client legal privilege over these documents. 6. The only evidence concerning these documents is contained in the affidavit of Ms Carroll, the solicitor for Nest, affirmed 4 December 2023, who deposed that: "The documents identified in rows numbered 7, 8, and 15 of Annexure A are the subject of a claim for legal professional privilege for the reasons set out in those rows of Annexure A and paragraph 34 of this affidavit. I am instructed by Mr Nguyen that, at the time of making the communications, he had engaged Chris Lim and Associates to provide legal advice regarding the draft corporate authorised representative agreement to be entered into by Postcode, as agent on the one hand, with Azure, as principal on the other. In exchanging the emails with Azure, Mr Nguyen conveyed advice from Mr Lim in the course of confidential negotiations regarding the agreement. Nest Insurance Consult Pty Ltd and Mr Nguyen claim legal professional privilege in respect of the document at row numbered 10 of Annexure A. The email is a confidential communication made for the dominant purpose of Nest and Mr Nguyen seeking and/or being provided legal advice by their lawyers Chris Lim and Associates." 1. What that evidence shows is that Mr Nguyen has disclosed the legal advice he has received to representatives of Azure in the course of negotiating the contract ultimately entered into between Postcode and Azure. 2. Mr Philips, for Nest, contends that although there has been such disclosure, it does not amount to a waiver of privilege because there was a common interest between Mr Nguyen and Postcode on the one hand and Azure on the other hand such that privilege has not been waived. 3. The difficulty with that submission is that there is no evidence before me beyond that to which Ms Carroll has deposed as to the circumstances in which the disclosure took place; save that my attention has been drawn to one email from Mr Nguyen to a representative of Azure in which, only a month or so after Resilium terminated Nest's contract, Mr Nguyen disclosed to a representative of Azure the substance of legal advice he received. 4. The question whether there is common interest privilege will depend on an understanding of the stage at which negotiations between Nest and Azure had reached. If the disclosure was at a point where their interests were still at arm's length and potentially adverse, it would appear unlikely to have been any common interest. It may be different if the circumstances were that the disclosure was at a stage of negotiations where consensus had been achieved and that agreement in principle had been reached. 5. As there is no evidence either way about that matter, and Resilium having sustained the onus to show that, on the face of it, there has been a disclosure such as would amount to a waiver, in the absence of any evidence from Mr Nguyen as to those circumstances, I am not satisfied that a common interest privilege has been established. 6. For those reasons, I will direct that the Resilium parties have access to the documents in packet S-19. 7. Since giving these reasons my attention has been drawn to one of the documents in packet S-19, being an email Mr Nguyen sent his solicitor on 11 December 2020. That email does not appear to be directly concerned with any of the proposed arrangements between Postcode and Azure. However, it appears to be an even clearer case of waiver because the email is addressed not just to Mr Nguyen's solicitor but to Mr Edgar of Azure. 8. In order to explain his position in relation to that email, Mr Philips invited me to look at the unredacted copy of the email. Having done so, it appears to me that the case of waiver is even clearer there than in relation to the other documents. 9. The result is that Resilium may inspect all the documents in packet S-19 on the basis that such privilege as might otherwise have attached to those documents has been waived. ********** Endnote 1. Resilium Pty Ltd v Nest Insurance Consult Pty Ltd [2021] NSWSC 974. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2024